Lois Billingslea v. Wal-Mart Stores, Inc.

Decision date: January 2, 200829 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits to Lois Billingslea for a low back injury sustained on September 26, 2003, while lifting a pallet onto a shopping cart at a Wal-Mart store in Branson West, Missouri. The employee was awarded compensation of $4,546.20 for 5 percent permanent partial disability to the body as a whole (20 weeks), with $5,714.67 in medical expenses already paid by the insurer.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-142261

Employee: Lois Billingslea

Employer: Wal-Mart Stores, Inc.

Insurer: American Home Assurance

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: September 26, 2003

Place and County of Accident: Branson West (Stone County), Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 3, 2007. The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued July 3, 2007, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad$ 2nd day of January 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Dependents:	N/A
Employer:	Wal-Mart Stores, Inc.
Insurer:	American Home Assurance
Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund
Hearing Date:	April 5, 2007
Checked by: LTW
FINDINGS OF FACT AND RULINGS OF LAW
1.	Are any benefits awarded herein? Yes
2.	Was the injury or occupational disease compensable under Chapter 287? Yes
3.	Was there an accident or incident of occupational disease under the Law? Yes
4.	Date of accident or onset of occupational disease: September 26, 2003
5.	State location where accident occurred or occupational disease was contracted: Branson West (Stone County), MO
6.	Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7.	Did employer receive proper notice? Yes
8.	Did accident or occupational disease arise out of and in the course of the employment? Yes
9.	Was claim for compensation filed within time required by Law? Yes
10.	Was employer insured by above insurer? Yes
11.	Describe work employee was doing and how accident occurred or occupational disease contracted: The employee sustained an injury to her low back while lifting a pallet onto a shopping cart.
12.	Did accident or occupational disease cause death? No Date of death? N/A
13.	Part(s) of body injured by accident or occupational disease: Low back
14.	Nature and extent of any permanent disability: 5 percent to the body as a whole (20 weeks)
14.	Compensation paid to-date for temporary disability: None
16.	Value necessary medical aid paid to date by employer/insurer? $5,714.67
Employee: Lois Billingslea	Injury No. 03-142261
17.	Value necessary medical aid not furnished by employer/insurer? Alleged $97,477.50
18.	Employee's average weekly wages: $340.00
19.	Weekly compensation rate: 227.31
20.	Method wages computation: Stipulation
COMPENSATION PAYABLE
21.	Amount of compensation payable: $4,546.20
Unpaid medical expenses: None
No weeks of temporary total disability (or temporary partial disability)

20 weeks of permanent partial disability from Employer

No weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning, for Claimant's lifetime: None

Second Injury Fund liability: No

TOTAL: N/A

Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Jeffrey C. Goodnight, Esq.

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Lois Billingslea

Injury No. 03-142261

Dependents: N/A

Employer: Wal-Mart Stores, Inc.

Insurer: American Home Assurance

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

The above-referenced workers' compensation claim, which involved the joining of two workers' compensation cases for hearing, was heard before the undersigned Administrative Law Judge on April 5, 2007. 11 The parties were afforded an opportunity to submit briefs, resulting in the record being completed and submitted to the undersigned on or about May 18, 2007.

The parties entered into a stipulation of facts in Injury No. 03-142261. The stipulation is as follows:

(1) On or about September 26, 2003 Wal-Mart Stores, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by American Home Assurance.

(2) On the alleged injury date of September 26, 2003 Lois J. Billingslea was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The above-referenced employment and alleged accident occurred in Stone County, Missouri. The parties agree to venue lying in Ozark (Christian County), Missouri. Venue is proper.

(4) The employee notified the employer of her injury as required by Section, 287.420, RSMo.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(6)	At the time of the alleged accident the claimant's average weekly wage was sufficient to allow a compensation rate of $227.31 for temporary and permanent disability compensation.(7) Temporary disability benefits have not been provided to the employee.(8) The employer and insurer have provided medical treatment to the employee, having paid $5,714.67 in medical expenses.
The sole issues to be resolved by hearing in Injury No. 03-142261include:
(1)	Whether the employee sustained an accident on or about September 26, 2003; and, if so, whether the accident arose out of and in the course of employment?(2) Whether the alleged accident caused the injuries and disabilities for which benefits are now being claimed?(3) Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $97,477.50?(4) Whether the claimant has sustained injuries that will require additional or future medical care in order to cure and relieve the employee of the effects of theinjuries?(5) Whether the employee is entitled to temporary disability benefits? (The employee seeks TTD for the period of March 1, 2004 to September 1, 2004.)(6) Whether the employee sustained any permanent disability as a consequence of the alleged accident; and, if so, what is the nature and extent of thedisability?(7) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?
The parties entered into a stipulation of facts in Injury No. 04-142244. The stipulation is asfollows:
(1)	On or about September 22, 2004 Wal-Mart Stores, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by AmericanHome Assurance.(2)
On the alleged injury date of September 22, 2004 Lois J. Billingslea was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.(3)
The above-referenced employment and alleged accident occurred in Stone County, Missouri. The parties agree to venue lying in Ozark (Christian County), Missouri. Venue is proper.(4)
The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.(5)
At the time of the alleged accident the claimant's average weekly wage was sufficient to allow a compensation rate of $227.31 for temporary and permanent disability compensation.(6)
Temporary disability compensation and medical care have not been provided to the employee.
The sole issues to be resolved by hearing in Injury No. 04-142244include:
(1)	Whether the employee sustained an accident on or about September 22, 2004; and, if so, whether the accident arose out of and in the course of employment?(2) Whether the employee gave the employer proper notice of the alleged accident?(3) Whether the alleged accident of September 22, 2004 caused the injuries and disabilities for which benefits are now beingclaimed?(4) Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $27,997.78?

(5)	Whether the employee is entitled to temporary disability benefits? (The employee seeks TTD for period of October 1, 2004 to March 1, 2005.)(6) Whether the employee sustained any permanent disability as a consequence of the alleged accident; and, if so, what is the nature and extent of the disability?(7) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?
EVIDENCE PRESENTEDThe claimant testified at the hearing in support of her claim. Also, the claimant offered for admission the followingexhibits:
Exhibit A	Medical Records from Skaggs Occupational Health Center (Dated October 6, 2003 -- October 16, 2004)
Exhibit B	Medical Records from Orthopedists Specialists of Springfield (Dated March 18, 2004 -- November 9, 2004)
Exhibit C	Medical Records from Cox Medical Center (Dated March 18, 2004 -- November 6, 2004)
Exhibit D	Medical Records from Oxford HealthCare (Dated April 26 2004 -- May 12, 2004 and Oct. 19, 2006 -- Nov. 9, 2006)
Exhibit E	Medical Records from Skaggs Community Health Center (Branson West Rehabilitation Services, Dated Dec. 11, 2003 -- Jan. 25, 2005)
Exhibit F	Medical Records from Skaggs Community Hospitals (Dated Dec. 5, 2003 -- April 16, 2004)
Exhibit G	Medical Records from Kymberly Rittman, D.O. (Dated Oct. 7, 2002 -- Oct. 18, 2002)
Exhibit H	Medical Records from William Cunningham, M.D. (Dated Oct. 9, 2002 -- Feb. 3, 2003)
Exhibit I	Medical Records from Barnes Jewish Cancer Center (Dated Feb. 12, 2003 -- July 10, 2003)
Exhibit J	Medical Records from Barnes Jewish Hospital (Dated April 14, 2003 -- July 10, 2003)
Exhibit K	Medical Records from Ted A. Lennard, M.D.
Exhibit L	Medical Records from William Wester, M.D.
Exhibit M	Medical Report from Brent Koprivica, M.D.
Exhibit N	Deposition of Brent Koprivica, M.D.
Exhibit O	Vocational Evaluation Report from Wilbur Swearingin, CRC
Exhibit P	Deposition of Wilbur Swearingin, CRC
Exhibit Q	Deposition of Christine Menias, M.D.
Exhibit R Summary of Medical Expenses in Injury No. 03-142261 & Billing Records from:
•	Emergency Physicians of Springfield
•	Cox Medical Centers
•	Ozark Anesthesia Associates
•	Skaggs Hospital
•	OSS
•	Litton & Giddings
•	Oxford Healthcare
Exhibit S Summary of Medical Expenses in Injury No. 04-142244 & Billing Records from:
•	Cox Medical Centers
•	Ozark Anesthesia Associates
•	William Wester, M.D.
•	Skaggs (PT)
•	Springfield Neurological Institute

The Commission affirmed the Administrative Law Judge's award of permanent total disability compensation, finding the employee's November 1, 2016 back injury combined with qualifying preexisting disabilities met statutory requirements for Second Injury Fund liability. The employee's preexisting lower left extremity and thoracic disabilities, each exceeding fifty weeks of permanent partial disability, directly aggravated and accelerated the primary work-related back injury resulting in permanent total disability.

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